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2019 DIGILAW 2075 (JHR)

Umesh Kumar Bhagat @ Bablu v. State of Jharkhand

2019-12-20

DEEPAK ROSHAN

body2019
JUDGMENT : 1. The instant application is directed against the judgment dated 05.06.2014, passed by the learned Principal Sessions Judge, Simdega in Criminal Appeal No.25 of 2013, whereby the appeal preferred by the petitioner has been dismissed and the judgment of conviction and order of sentence dated 12.04.2013, passed by the learned Judicial Magistrate 1st Class, Simdega in G.R. No.257/2010 corresponding to T.R. No.54/13, whereby the petitioner has been convicted for the offence under Section 47 (f) of Bihar Excise Act, 1915 (hereinafter to be referred as the Act) and was sentenced to undergo SI for 2 years with fine of Rs.2,000/-and in default of payment of fine he was further directed to undergo additional SI for 2 months, has been affirmed. 2. The case of the prosecution as per the written application of informant-A.S.I.-Maheshwari Prasad, in brevity is that on 12.08.10 at about 8:45 P.M. he was on petrolling duty with armed police. Near Bolba more at Simdega-Rourkela main road, one truck was coming from Rourkela. When the truck saw the police party, stopped his vehicle and two persons tried to escape away from there. They were apprehended with the help of police party. When they were asked, one of them revealed his name as Nafis Anwar as owner of the truck and another revealed his name as Umesh Kumar Bhagat @ Bablu as businessman of mahua. The truck was loaded with 140 bags of mahua. When they were asked to produce the document they could not answer satisfactorily. It is also alleged that when he inquired about owner book of the vehicle, it was written in owner book, the number of vehicle as JH-20A-4065 but the number plate of the vehicle was shown as C.G.-14Z-B0161. It is alleged that both the persons were arrested under the provision of Indian Penal Code and Excise Act. He seized the vehicle and mahua and prepared seizure list. 3. After completion of investigation, the I.O found the case true and submitted the charge-sheet and cognizance was taken and charges were framed. The petitioner pleaded not guilty and sent up for trial. 4. The learned trial court after dealing with the evidences, both oral and documentary, and after hearing the counsel for the accused persons and the State convicted the petitioner holding as under: “13. The petitioner pleaded not guilty and sent up for trial. 4. The learned trial court after dealing with the evidences, both oral and documentary, and after hearing the counsel for the accused persons and the State convicted the petitioner holding as under: “13. Now I come to the legal point, the defense version is that the mahua does not come under the purview of Excise Act. I am totally unstaisfy with this argument of defense. 47 (f) of Excise Act contemplates as "whoever uses, keeps or has in his possession any material ............. for the purpose of manufacturing any intoxicant other than Tari" The word 'for the purpose of manufacture any intoxicant,' as I earlier discussed that such type of huge quantity can not be kept or possess for the purpose of personal consumption. Now the question is what is itoxicant? Section 2 (12a) of Excise Act deals with intoxicant. Section 2 (12a) (ii) reads as follows "any substance from which liquor may be distilled ............" and here it is needless to say that from mahua country made liquor is used to made. Section 13 (f) deals as follows "no person shall use keep or have in his possession any materials ........... whato so ever for the purpose of manufacturing any intoxicant" and for that license is required. Now it is clear that mahua comes under the purview of Excise Act, and the seized mahua was not for personal consumption." 5. Being aggrieved, the petitioners challenged the aforesaid judgment and order dated 12th April, 2013 before the learned Sessions Judge, Simdega in Cr. Appeal No.25/13 and the learned appellate court, concurring with the finding given by the learned trial court, sustained the judgment of conviction and also the order of sentence. 6. The learned counsel for the petitioner submits that the impugned judgment is against the provisions of law and as such the same is fit to be set aside. He further submits that out of 9 witnesses, there are only 2 independent witnesses and both of them had not supported the prosecution case. He further submits that the investigating officer of this case has not been examined. Barring contradictions in the prosecution witnesses, all the witnesses examined by the prosecution has clearly admitted that Mahua is available in open market and it is in free sell. There is no restriction in sale and purchase of Mahua in Jharkhand State. He further submits that the investigating officer of this case has not been examined. Barring contradictions in the prosecution witnesses, all the witnesses examined by the prosecution has clearly admitted that Mahua is available in open market and it is in free sell. There is no restriction in sale and purchase of Mahua in Jharkhand State. He further submits that the petitioner is dealer of Mahua and he has valid licence for the same. He further contended that the ingredients for the offence under Section 47(f) is not attracted against the petitioner as no evidence has come on record that he was in possession of 140 bags of Mahua with an intent and purpose for manufacturing of any intoxicant. He further submits that no utensils or machines were recovered from the house of the petitioner so as to establish that petitioner was in the business of manufacturing of intoxicant. He concluded his argument by submitting that even there is delay in lodging the FIR inasmuch as the alleged occurrence is of 12.08.2010 at about 8:45 P.M. but the FIR has been lodged on next date i.e. on 13.08.2010 at abut 3.30 P.M. in spite of the fact that the informant was ASI and the police station was the next building of the place of occurrence, as such, there was no reason for delay in lodging the FIR, however, the prosecution has failed to explain the delay. 7. Relying upon the aforesaid contention, he prays that the instant application be allowed and the impugned orders may be set aside. 8. Per contra, the learned APP submits that it is an admitted fact that 140 bags of Mahua was recovered by the police from the possession of the petitioner. Though the petitioner has stated in his statement under Section 313 Cr.P.C that he is bonafide purchaser of the said mahua which has been sold in the open market but no original paper was produced by him in support of his case. He further submits that so far as purpose of keeping the mahua in such a large extent is concerned, it can be derived from the intention and conduct of the petitioner which is very much clear that he was unable to produce any valid documents for keeping such huge quantity of mahua. He further submits that so far as purpose of keeping the mahua in such a large extent is concerned, it can be derived from the intention and conduct of the petitioner which is very much clear that he was unable to produce any valid documents for keeping such huge quantity of mahua. He concluded his argument by submitting that there is no error in the impugned orders and the instant application deserves to be rejected. 9. Heard learned counsel for the petitioner and learned APP for the State. 10. To decide the legal issue raised by the petitioner that keeping mahua does not come under the purview of the Excise Act and the petitioner has been wrongly convicted under Section 47 (f) of the Excise Act, it is necessary that necessary provisions of Bihar Excise Act, 1915 is discussed. Sections 2 (12a), 13 (f) and 47 (f) of Bihar Excise Act 1915 is reproduced herein below: Section 2 (12a) 'intoxicant' means – (i) any liquor, or (ii) any substance from which liquor may be distilled and which is declared by the State Government by notification in the oficial Gazette to be an intoxicant for the purpose of this Act, or (iii) intoxicating drug, or (iv) medicinal preparation as defined under the Medicinal and Toilet Preparations (Excise Duties) Act, 1955. Section 13. Licence required for manufacture.- (a) …..... (b) ….... (c) ........ (d) …..... (e) …..... (f) no person shall use, keep or have in his possession any materials, still, utensil, implement or apparatus whatsoever for the purpose of manufacturing any intoxicant other than tari, Section 47 (f) of Bihar Excise Act, 1915: 47. Penalty for unlawful import, export, transport, manufacture, possessions, consumption, sale etc. -If any person, in contravention of this Act, or of any rule, notification, or order made, issued or given or licence, permit or pass granted under this Act- (a) …............. (b) …............ (c) ................ (d) …............... (e) …............... (f): uses, keeps or has in his possession any material still, utensil, implement, or apparatus whatsoever for the purpose of manufacturing any intoxicant other than tari; or (g) …........... (h) …............. (b) …............ (c) ................ (d) …............... (e) …............... (f): uses, keeps or has in his possession any material still, utensil, implement, or apparatus whatsoever for the purpose of manufacturing any intoxicant other than tari; or (g) …........... (h) …............. he shall be punished with imprisonment for a term which may extend to three years and shall be liable to fine which may extend to five thousand rupees and in default of payment of fine, he shall be punished with a further imprisonment for a term which may extend to one year: 11. From the conjoined reading of the aforesaid provisions it is clear that whoever uses, keeps or has in his possession any material still, utensil, implement, or apparatus for the purpose of manufacturing any intoxicant other than Tari shall be punished under Section 47(f) of the Act. For the purpose of establishing offence under Section 47 (f), it has to be conclusively proved that the petitioner was using the alleged mahua for the purposes of manufacturing any intoxicant and for the purposes of establishing manufacturing, the prosecution has to establish recovery of utensils/apparatus/implement/distillery etc. which is used in the manufactuing process. None of the prosecution witnesses have establised the fact that the petitioner was carrying the alleged mahua for the purposes of manufacturing intoxicant. In fact P.W. 2 in para 4, P.W. 3 in para 3, P.W. 4 in para 3 of their cross examinations have categorically stated that mahua is being sold in the open market and village haat in Jharkhand and the merchant used to purchase the same. The prosecution has failed to establish as to what contravention of the Act/Rule/Notification/Order etc. has been done by the petitioner which is necessary for initiating prosecution under Section 47 of the Act. Merely carrying/ possessing mahua without documents would not attract Section 47 (f) of the Act because the provision specifically deals with manufacturing of intoxicant. 12. It is a settled proposition of criminal jurisprudence that in a criminal trial the burden of providing everything essential lie on the prosecution and there is presumption of innocence in favour of the accused unless the contrary is proved. Criminality has not to be presumed subject to some extra ordinary exception. There is no such exterior exception pleaded in the present case. 13. Criminality has not to be presumed subject to some extra ordinary exception. There is no such exterior exception pleaded in the present case. 13. In the instant case, the finding of the learned trial court that such a huge quantity cannot be kept or possessed for the present consumption does not ipso facto proves that the petitioner was engaged in manufacturing of intoxicant as under Section 47 (f) of the Act, such possession only for the purpose of manufacturing liquor other than tari amounts to an offence. As aforesaid, the petitioner was a businessman and was having a valid trading licence issued by the Agriculture Market Committee, Gumla. The learned appellate court committed the same error in concurring with the finding with the learned trial court and holding that since Mahua is a material for manufacturing country made liquor which is intoxicant within the meaning of Section 12 (a) (ii) of the Excise Act as such the seized mahua was not for personal consumption. 14. In view of the aforesaid discussions, it is held that the prosecution has failed to prove its case beyond all shadow of reasonable doubt and the conviction of the petitioner u/s 47 (f) of the Act is only on the basis of surmises and conjecture which is not permissible in the eye of law and as a result, the instant revision application is allowed and the judgment and order dated 12.04.2013, passed by the learned Judicial Magistrate 1st Class, Simdega and the judgment dated 05.06.2014, passed by the learned Principal Sessions Judge, Simdega, are, hereby, set aside. 15. The petitioner is discharged from the liability of his bail bonds. 16. Let the lower court record be sent back to the court concerned forthwith. 17. Let the copy of this order be communicated to the court below.